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Rancher Cliven Bundy speaks during a news conference near his ranch on April 24, 2014 in Bunkerville, Nevada.
Rancher Cliven Bundy speaks during a news conference near his ranch on April 24, 2014 in Bunkerville, Nevada. (Photo: David Becker/Getty)

The Government Is Botching Another Bundy Trial

The family has long argued that the government was willing to bend the rules to put the family away鈥攏ow a judge seems to be listening

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Rancher Cliven Bundy speaks during a news conference near his ranch on April 24, 2014 in Bunkerville, Nevada.
(Photo: David Becker/Getty)

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Last week, the judge overseeing the trial of Cliven Bundy, his sons Ammon and Ryan, and a militia leader named Ryan Payne聽unexpectedly sent the jury home. She had already called a hearing and 聽the defendants, who up until then had spent almost two years in pretrial detention. Now she called for a sealed hearing to discuss a growing file of .

This trial focuses on the four so-called 鈥渕ost culpable鈥 leaders of the standoff between federal agents and militias and Bundy loyalists at the family鈥檚 Nevada ranch聽in 2014. It is the latest in a series of trials covering the events in Nevada and the takeover of the Malheur National Wildlife Refuge, which was led by Ammon and Ryan Bundy. The trials had already been proceeding shambolically鈥攎arred by delays and a growing collection of seemingly key and exculpatory evidence that prosecutors聽have failed to turn over to defense lawyers during聽discovery.

video footage,聽evidence that an FBI agent had an AR-style rifle near the family home, and FBI 鈥渢hreat assessments,鈥 all of which seem to have the potential to back up a central plank of the defense: that the family brought armed protesters to the ranch in self-defense, because they were surrounded by what they feared was a hostile force of government 鈥渟nipers.鈥 The situation could 鈥渦ndermine the confidence in the outcome of the trial,鈥 presiding judge聽. 鈥淭he court is inclined to find that this information was not timely provided.鈥

But another piece of potential evidence鈥攁 sealed whistleblower report apparently leaked and shared by a Washington state representative鈥攊s news of a different order, a report that seems likely to upend the government鈥檚 case against the Bundys, and that will probably do more than any event since the shooting death of LaVoy Finicum to add anger and recrimination into the already-fervid conflict over public lands in the West.

滨鈥檝别 before, and wrote about their movement. I hadn鈥檛 even had a chance to read the report by the time news of it began flying around the Internet. I got a breathless call from a聽sometime Bundy supporter who has tried to be a voice of moderation called me. 鈥淎fter all this trying, you know, to be sane and moderate,鈥 he said,聽鈥渋t鈥檚 like every bad thing they say about what the government does is true.鈥

This is overstating it, but if true, the report is damning. It was written by a man named Larry Wooten, who describes himself as the BLM鈥檚 lead investigator on the case that led to the failed attempt to round up the family鈥檚 cattle, which had been grazing on federal land without permits for 20 years. 鈥淭he longer the investigation went on,鈥 he writes, 鈥渢he more extremely unprofessional, familiar, racy, vulgar and bias-filled actions, inappropriate electronic communications I was made aware of, or I personally witnessed. In my opinion, these issues would likely undermine the investigation, cast considerable doubt on the professionalism of our agency, and be possibly used to claim investigator bias/unprofessionalism.鈥

The details are lurid and slightly funny. Wooten聽says the investigative team described subjects as 鈥渞*tards, r*dnecks, overweight woman with the big jowls, d*uche bags, tractor-face,鈥 among other things. He also accuses Dan Love, the now fired special agent in charge, of sending photos of his feces and 鈥渉is girl-friend鈥檚 vagina,鈥 to subordinates鈥攚hich is maybe less serious than the fact that Wooten聽alleges Love operated in a more or less private fiefdom and ignored warnings from state and federal law enforcement to lead 鈥渢he most intrusive, oppressive, large scale, and militaristic trespass cattle impound possible.鈥

He alleges a systemic anti-Mormon bias, and that the agency was actively engaged in helping Dan Love to cover up misconduct, which leads to the most relevant and disturbing accusation: that Steven Myhre, the lead prosecutor and acting U.S. Attorney for Nevada, was aware of major issues within the BLM and of substantial evidence that could aid the Bundys鈥 defense. 鈥淣ot only did Mr. Myhre in my opinion not want to know or seek out evidence favorable to the accused, he and my supervisor discouraged the reporting of such issues and even likely covered up the misconduct,鈥 he writes.

A later investigation by a supervisor pushed back on Wooten鈥檚 claims about evidence being withheld, but the report is nonetheless hard to swallow. The general sweep of it backs up a list of concerns that anyone following these issues could have had since even before the trials began. Love has often been accused of being out of control, being beyond any oversight, and of acting like a bully鈥攁nd he鈥檚 for demanding free tickets to Burning Man, threatening that 鈥済renades will go off鈥 if he didn鈥檛 get his way, and giving away artifacts that were supposed to be evidence in an investigation. The fact that he led the roundup has been a problem for the government鈥檚 case since the beginning.

It鈥檚 too early to say if Wooten鈥檚 report will lead to any specific piece of exculpatory evidence that hadn鈥檛 been turned over to the defense, but the problems in that department are already legion: there are reportedly 14 outstanding evidence issues under discussion, and the troubling thing about the whistleblower report is that it alleges intentionality on the part of the government to withhold evidence. Bundy supporters are already prone to conspiratorial thinking. This report will only stoke their fervor.

The disarray and credible allegations of malfeasance aren鈥檛 just a product of this trial鈥攖hey鈥檝e been present since the moment Ammon and Ryan Bundy were arrested聽in the shootout that killed LaVoy Finicum and led to the end of the Malheur takeover. An of that shooting by the Deschutes County Sheriff鈥檚 Office found that two shots were fired as Finicum exited his truck鈥攐n synced video he can be seen emerging and putting his hands up just as the shots were fired. Finicum then went for a gun in his jacket pocket and was killed as he did so.

The trouble for the government is this: the FBI officer who allegedly fired those earlier shots didn鈥檛 disclose them to investigators, and his shell casings disappeared. He was ultimately charged in federal court with lying in an attempt to obstruct justice鈥攁n explicit admission that at least one federal agent had engaged in a quite literal cover-up.

Moments like this鈥攁nd the Wooten report, and countless other instances鈥攁nd the suspicion they engender聽have helped to make it difficult to actually convict anyone in the Bundy cases. The government issued 38 indictments in the standoffs at the Bundy ranch and the Malheur National Wildlife Refuge. They included indictments of five members of the Bundy family, a few of close family loyalists and militia leaders who were involved in both events, and dozens of mostly bit players, who up till now are the only participants in either event to聽face serious penalties.

Thus far, the government鈥檚 biggest victory is of a 53-year-old Phoenix man named Greg Burleson, who was one of the many loners who ended up being 鈥渕esmerized,鈥 as his attorney put it, by the Bundys and their peculiar brand of family charisma. Burleson liked to drink, and he liked to brag, and despite being a pretty marginal player in the Nevada drama, he drunkenly incriminated himself to FBI agents who claimed they were聽producing a documentary for a sham company called Longbow Productions.

鈥淚 was hell-bent on killing federal agents that had turned their back on we the people,鈥 he told them at the time. In July, blind and in a wheelchair, Burleson was convicted of assault, threats, obstruction of justice, and gun charges. He got 68 years. 鈥淵es, I said a lot of crazy things. I鈥檓 ashamed of them actually,鈥 he said during his sentencing. 鈥淟ooking back at them, it鈥檚 like, 鈥榃ow, obviously I shouldn鈥檛 drink.鈥欌

The other indictments have produced 鈥攐f Ammon and Ryan and five others鈥攁 couple of minor convictions, and a smattering of plea deals, resulting in sentences far shorter than Burleson鈥檚, generally for people much more involved in the actual events.

The current trial may be the last chance the government gets to convict the ringleaders of either event. The Bundys and Payne are each facing 15 felonies, including conspiracy, assault, firearms charges, and extortion. The seriousness of the charges鈥攁nd federally mandated聽minimum sentences鈥攎ean that the Bundys are effectively on trial for their lives, and their response has been to doggedly insist that they were responding to federal threats, intimidation, and bureaucratic overreach. Wooten鈥檚 report will bolster the Bundys鈥 argument that they were the victims of a vindictive campaign of intimidation by Dan Love and the BLM.

This argument has already worked for the Bundys in Oregon, where they were able to argue that they鈥檇 shown up to protest what they said were longstanding abuses by the BLM. 鈥淲ere we threatening to anyone?鈥 Ammon Bundy asked me incredulously,聽if a bit disingenuously, before his聽trial. 鈥淲e were there as peaceful鈥攂asically鈥攑rotestors.鈥 The acquittal set off a storm of anger on Twitter and in op-ed pages, alleging that a particularly naked strain of white privilege had been at work. 鈥淎pparently it鈥檚 legal in America for heavily armed white terrorists to invade Oregon,鈥 Montel Williams聽tweeted. 鈥淚magine if some black folk did this.鈥

This was probably fair, but the outrage obscured the fact that the government had hardly put together a convincing case as to why Ammon Bundy or his followers ought to be facing counts leading to decades in prison. 鈥淒o these folks even know what it took to arrive at a verdict on any one of these counts?鈥 one juror later . 鈥淗ow could 12 diverse people find such agreement unless there was a colossal failure on the part of the prosecution? Don鈥檛 they know that 鈥榥ot guilty鈥 does not mean 鈥榠nnocent鈥?鈥

As for the current trial, the parties will reconvene on Wednesday. The presiding judge, Gloria Navarro, has suggested the possibility of a mistrial, and lawyers for both Ammon and Cliven Bundy have filed motions to have the case dismissed. The government has been very clear about its zeal to see the Bundys go to prison, on very grave charges. It now seems possible that same zeal has undermined their case.

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