From left, Ammon Bundy, Ryan Payne, Jeanette Finicum, widow of Robert “LaVoy” Finicum, Ryan Bundy, Angela Bundy, wife of Ryan Bundy and Jamie Bundy, daughter of Ryan Bundy, walk out of a federal courthouse Wednesday, Dec. 20, 2017, in Las Vegas. Chief U.S. District Judge Gloria Navarro declared a mistrial Wednesday in the case against Cliven Bundy, his sons Ryan and Ammon Bundy and self-styled Montana militia leader Ryan Payne. (AP Photo/John Locher)

This has not been a good year for the federal government’s efforts to prosecute the people associated with Cliven Bundy and his brushfire war with the Bureau of Land Management.

Back in August, a federal jury acquitted four men involved in a 2014 stand-off with federal authorities (oddly enough, one of the two men they did convict was an FBI informant who got sentenced to 68 years).

I found this verdict to be stunning as federal juries tend to be much less sympathetic to this kind of thing than do state juries which typically consist of people from the county where the offense took place. And it marked the second time in a year that juries had refused to convict the Bundys over their protest movement.

The big fish, of course, was long time pain-in-the-ass Cliven Bundy and his two sons. After the August acquittals they were tried for a variety of crimes before the same federal judge who had presided over the trial that had just ended. Just before Christmas, that trial melted down, too. This time it was due to a rather grotesque level of prosecutorial misconduct. The federal government hid documents that directly contradicted some of the offenses they were charged with and statements the government had made in filings with the court.

To make matters worse, the information came to light because of the actions of a whistleblower, not by remedial action on the part of the government. The judge declared a mistrial and announced a hearing to decide what she would do next: dismiss charges or allow the government to re-try the case.

Today the judge made her decision:

A federal judge Monday threw out criminal charges against Nevada cattleman Cliven Bundy, his two sons and a co-defendant in the 2014 Bunkerville standoff, citing “flagrant misconduct” by prosecutors and the FBI in not disclosing evidence to the defense before and during trial.

“The government’s conduct in this case was indeed outrageous,” U.S. District Judge Gloria M. Navarro ruled. “There has been flagrant misconduct, substantial prejudice and no lesser remedy is sufficient.”

The judge issued her ruling before a packed courtroom with nearly 100 spectators. As Navarro dismissed the case, Cliven Bundy’s lawyer put his arm around his client. Supporters in the public gallery held hands, wiped tears from their eyes and hugged.

The dismissal with prejudice, meaning a new trial can’t be pursued, marked an embarrassing nadir for the federal government, which now has failed to convict the Bundys in two major federal cases stemming from separate armed standoffs.
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The judge found prosecutors engaged in a “deliberate attempt to mislead” and made several misrepresentations to both the defense and the court about evidence relating to a surveillance camera, snipers outside the Bundy ranch in early April 2014 and threat assessments made in the case.

“The court is troubled by the prosecution’s failure to look beyond the FBI file,” Navarro said.

She said she “seriously questions” that the FBI “inexplicably placed or perhaps hid” information on the placement of snipers on a “thumb drive inside a vehicle for three years.”
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The judge found the prosecutors’ violations were “willful” and led to due process violations. She said they waited too long to provide FBI and other agency reports and maps on surveillance, including the location of a camera and snipers, outside the Bundy ranch; threat assessments that indicated the Bundys weren’t violent; and nearly 500 pages of U.S. Bureau of Land Management internal affairs documents that included paperwork indicating that cattle grazing hadn’t threatened the desert tortoise, considered an endangered species.

You don’t have to like or approve of the Bundys and their tactics to be appalled that the federal government would deliberately try to send men to jail for the rest of their lives while knowing the charges were a) bogus and b) hiding exculpatory evidence from the defense. In fact, when you examine what we know of the government’s actions in the 2014 standoff (why does the Bureau of Land Management have snipers, anyway?) it seems as though they fully intended to kill as many of the people involved in the standoff as possible.

Whenever a case is dismissed for prosecutorial misconduct, a Department of Justice investigation is triggered. Don’t expect anything to happen. This is just DOJ closing ranks to cover its own ass and to protect its own. When the team prosecuting former Alaska Senator Ted Stevens on totally manufactured corruption charges were investigated they were ordered suspended, not fired, and that suspension was eventually overturned and they received back pay.

I hope Bundy learns a lesson from this, but I doubt he’s capable of that degree of introspection. I really hope his sons, who all have families, learn a lesson, too, from this close encounter of the worst kind. If the government tried to kill or falsely imprison them before, you know that the next time out they aren’t going to fail. If these guys have any commonsense there won’t be a next time. But there, as someone famous once said, lies the rub.