Cliven Bundy Wins: Judge Cites ‘Flagrant’ Federal Misconduct

By David French

Tuesday, January 09, 2018

In April 2014, America was transfixed by an armed standoff in the Nevada desert. On one side was a collection of dangerous, out-of-control armed men who were deliberately provocative, prone to saying unhinged things in a single-minded quest to destroy their enemies, and who lied time and again to cover their misdeeds.

On the other side was Cliven Bundy.

If you think that’s an unfair and inflammatory attack on the federal government, consider that yesterday a federal judge, Obama appointee Gloria Navarro, dismissed the federal government’s criminal case against Bundy and two of his sons on the basis that the government was guilty of “flagrant misconduct” in the trial. Its conduct was so “outrageous” that “no lesser remedy” than dismissal with prejudice “is sufficient.”

The government, you see, lied. It withheld evidence. It concealed the truth from the court and from the American people. To say this isn’t to whitewash Bundy’s misdeeds. He broke the law. He defied the government without any legal justification, and his own conduct helped precipitate a crisis that could have led to a horrible tragedy. Bundy was wrong.

But so was the government, and the government’s conduct, given its enormous power over the lives and liberty of its citizens, was far more troubling than anything Bundy did.

It’s worth taking a short trip down memory lane. The Bundy standoff at the time appeared to be a straightforward example of crazy anti-government protesters courting violence in an effort to evade the law. Bundy’s cows grazed on federal land, and he owed the government substantial grazing fees. He also apparently ignored orders limiting the number of cows that could graze and the places where they could graze. He harmed the habitat of a protected tortoise.

The government sued Bundy twice, and Bundy lost each time. Yet he still refused payment. He claimed that the government had a vendetta against him and that it was more interested in harming him than protecting endangered species. When the government came to seize his cattle, Bundy called out the right-wing militia. Within days, armed federal agents confronted armed “patriot” groups, and only an agreement by the feds to return Bundy’s cattle defused the standoff.

To most of the country, the lessons were clear. White rednecks (“Y’all Qaeda”) fought the law, and the white rednecks won. Since virtually every controversy in this country is racialized, the standoff was seen as the ultimate expression of white privilege (could any black American get away with similar defiance?), and when the feds finally got around to arresting and trying Bundy, the case seemed open and shut.

In its indictment, the federal government claimed that Bundy used “deceit and deception” to recruit its allied “gunmen” to defend his cattle from government seizure. As Mother Jones’s Stephanie Mencimer outlined in a lengthy report on the case, the alleged deceptions included claims that officers abused David Bundy when they arrested him a few days before the standoff and claims that the Bureau of Land Management had surrounded his property with snipers. Here’s Mencimer:

But those claims, dismissed by the government as fiction by paranoid anti-government activists, have largely turned out to be true. And it’s taken the government nearly two years, and three trials, to admit as much in court.

Oops. As Mencimer notes, this information dribbled out over the course of the court proceedings, at least until Larry Wooten, a BLM special agent who worked on the Bundy case, wrote an explosive whistleblower memo outlining a truly stunning series of government misdeeds that went well beyond withholding evidence at the trial. To be clear, Wooten is no fan of the Bundys. He rightly accused them of pursuing an “illegal, uncivilized, and dangerous strategy,” but the same words apply to the federal government — the alleged guardians of the rule of law.

First, he outlined vicious hostility toward the Bundys and their allies. Federal agents called them, among other things, “retards,” “rednecks,” “tractor-face,” and “inbred.” Emails insulted Bundy in terms that can’t be reproduced in a decent publication. Wooten also “became aware” that law-enforcement officers “bragged about roughing up Dave Bundy, grinding his face into the ground, and Dave Bundy having little bits of gravel stuck in his face.” Wooten called agents’ behavior “carnival, inappropriate, and childish.”

Wooten also claimed that the special agent in charge “ignored” direction from U.S. attorneys and from BLM management and instead chose to command “the most intrusive, oppressive, large-scale, and militaristic trespass cattle impound possible.” Wooten also claimed there existed “excessive use of force, civil rights, and policy violations,” including deliberate efforts to withhold exculpatory evidence. Wooten not only accused the government of misrepresenting the truth about snipers at trial, he specifically described the snipers’ armament and positioning.

In her ruling dismissing the case, Judge Navarro noted that the government also withheld information about threat assessments indicating that the Bundys weren’t violent, documents showing that cattle grazing “hadn’t threatened the desert tortoise,” and hundreds of pages of internal-affairs documents about the special agent in charge. (BLM had fired him for, in part, “improperly using his position to get coveted tickets for friends to attend the Burning Man arts festival in 2015.”)

Taken together, the evidence demonstrates that sometimes the paranoid are correct. In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage.

Federal judges do not dismiss federal prosecutions lightly, and Obama appointees are hardly known to carry water for right-wing militias. Moreover, Judge Navarro’s dismissal is in no way a vindication of Bundy’s tactics. His allies, after all, went so far as to put women in the front of the firing line with the express hope that they’d die first in any firefight — and embarrass the federal government in front of the world. Others pointed guns straight at federal officers. That’s not civil disobedience, that’s armed resistance, and it’s entirely inappropriate when — as we see here — the law still offered redress against violations of Bundy’s civil rights.

The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes?

Bundy’s case teaches a number of valuable lessons. We cannot presume the government’s virtue. Sometimes even wild tales are true. And every American — from the angriest antifa activist to the leader of “Y’all Qaeda” — is entitled to the full protection of the United States Constitution.