On Monday, U.S. District Judge Gloria Navarro dismissed with prejudice all charges against Cliven Bundy, his two sons, and an affiliated militiaman. Prosecutors had charged all four men with for conspiracy and assault after they staged an armed standoff with federal agents at Bundy’s Nevada ranch in 2014. Navarro’s ruling will allow the defendants to walk free after repeatedly threatening the lives of law enforcement. It was, without a doubt, the correct decision. The Bundys’ conduct was egregious. But so was the misconduct of federal prosecutors, who ignored the Constitution in their pursuit of a conviction.
Based on the available evidence, it seems obvious that the Bundys broke the law. For years, Bundy illegally allowed his cows to graze on federal land, refusing to pay grazing fees and threatening the habitat of a protected tortoise. When the government attempted to seize his cattle, Bundy and his family engaged in an armed showdown at their ranch, rallying supporters to help him fight back. The Bureau of Land Management eventually negotiated a de-escalation with Bundy. Despite this peaceful anticlimax, every individual who sided with the Bundys, as well as the family itself, broke multiple laws.
However, as Navarro explained from the bench on Monday, the federal government’s subsequent efforts to punish the Bundys for this ranch standoff constituted an “outrageous” violation of their due process rights. To understand how prosecutors flouted the Fifth Amendment, it’s important to understand the charges in the case. The government alleged that the Bundys had engaged in a criminal conspiracy to mobilize armed supporters. According to the indictment, the family used “deceit and deception to recruit gunmen” by “deliberately lying” about federal agents’ heavy-handed tactics. Specifically, the indictment alleged that the Bundys had falsely claimed that the government surrounded their ranch with snipers, and that officers used excessive force while arresting Dave Bundy, Cliven’s son.
There turned out to be a serious flaw in this allegation: The Bundys were telling the truth, and prosecutors were lying. Initially, the government derided the Bundys’ assertion that snipers monitored them during the standoff. But when defense attorneys questioned Dan Love, the special agent in charge of the Bundy crackdown, he admitted that snipers were present around the ranch. (Prosecutors had withheld reports on the snipers’ location.) The government also denied the Bundys’ claim that Dave was arrested with undue violence. But Larry Wooten, a former investigator with the Bureau of Land Management, filed a whistleblower report revealing that bureau officers actually boasted of using excessive force on Dave and “grinding his face into the ground.”
Prosecutors withheld more information from both the court and defense attorneys, including video surveillance of the ranch and an FBI threat assessment concluding that the Bundys probably weren’t violent. They also mocked the Bundys for requesting an internal affairs report on misconduct at the Bureau of Land Management, describing the report as a “bright shiny object … that did not exist.” In fact, undisclosed documents revealed that the report did exist, and described flagrant misconduct at the bureau that led to the termination of Dan Love, the special agent who oversaw the Bundy standoff. (Love allegedly abused his office to get tickets to Burning Man for his friends.) Prosecutors additionally withheld a bureau report finding that Bundy’s cattle hadn’t actually threatened the protected tortoise.
Not all prosecutorial subterfuge rises to the level of a constitutional transgression. This does. Under the Due Process Clause, the government must turn over exculpatory evidence to criminal defendants. That makes good sense: A prosecutor’s duty is to seek the fair administration of justice, not to secure convictions at any cost. The suppression of exculpatory evidence raises the risk of a wrongful conviction or unduly harsh sentence, a clear contravention of basic due process principles.
Yet that’s exactly what prosecutors did here. The government claimed that the Bundys lied about snipers and excessive force—indeed, made those alleged fabrications a key part of their legal theory—while withholding evidence that the Bundys were telling the truth. (Navarro speculated that the FBI may have hidden these records on a nondescript flash drive.) Prosecutors suppressed video footage of the Bundys that might have aided their defense. (Acting U.S. Attorney Steve Myhre mocked their request for this footage as “little more than a fantastical fishing expedition.”) And government attorneys concealed misconduct at the Bureau of Land Management in an apparent attempt to gaslight the Bundys. (The bureau did not think highly of the family; according to the whistleblower report, agents routinely referred to the Bundys as “retards,” “rednecks,” “douche bags,” and “idiots.”)
Speaking from the bench on Monday, Navarro, an Obama appointee, declared that “a universal sense of justice has been violated” in the prosecution of the Bundys. She’s absolutely right. What the family did was awful; what the government did next was, in many ways, just as bad. Our criminal justice system cannot operate equitably unless prosecutors respect constitutional checks on their authority. When they flout those limitations, they show no more respect for the rule of the law than the criminals whom they seek to put behind bars.
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