How the Government Botched the Case Against Cliven Bundy

On Wednesday, a federal judge in Nevada declared a mistrial in the prosecution of Cliven Bundy, his sons Ryan and Ammon, and family supporter Ryan Payne, over charges related to their armed standoff with federal officials in 2014. The government had failed to disclose pertinent evidence to defense lawyers, including FBI reports that said the Bundy family wasn’t dangerous — the latest in a series of embarrassing blunders and egregious misconduct by federal agents and prosecutors.

After racking up more than $1 million in fees for his cattle to graze on federal lands, Cliven Bundy had refused to pay. In April 2014, the Bureau of Land Management, with the help of so-called contract cowboys, tried to impound Bundy’s cattle. Cliven and his sons took up arms and were soon joined by dozens of armed supporters who had heard about their apparent plight through the social media and right-wing media. Federal agents backed down, delivering what appeared to a victory to Bundy and his supporters.

But the government wasn’t finished. Months after the standoff, the FBI set up a front company, Longbow Productions, and supposed employees portrayed themselves as documentary filmmakers sympathetic to the Bundy family and their supporters. The FBI even had a working title for their fake documentary: “America Reloaded.” But the government’s investigation seemed doomed from the start.

FBI agents posing as documentary filmmakers traveled to a hotel in Las Vegas in 2015 to interview Ryan Bundy. Sitting in a hotel chair as he waited to be interviewed by the fake filmmakers, Ryan seemed to grow wise to the government’s cover. “Is this just a mole project to garner information that will then be given to the feds?” Ryan asked the undercover agents.

“I want a truthful documentary,” answered Charles Johnson, the undercover FBI agent who was posing as the lead filmmaker.

Ryan’s suspicion about the undercover FBI operation was in hindsight a sign that the federal government’s case against the Bundy family and their supporters was headed off the rails.

The Justice Department and defense lawyers have until December 29 to file briefs arguing whether the judge should allow a new trial against Bundy, his sons, and Payne. Meanwhile, Attorney General Jeff Sessions has ordered a review of the case.

But for all the apparent zeal with which the U.S. government went after the Bundy family and their supporters, government agents and prosecutors seemed to succeed most in lending support to the various conspiracies the Bundy family and their supporters believed to be true — that a land-hungry, out-of-control federal government was victimizing Western ranchers.

The FBI’s Fake Documentary

Fearing another violent shootout like Ruby Ridge in 1992, federal agents withdrew from the Bundy ranch on April 21, 2014. But the FBI wasn’t willing to let the Bundy family and their supporters stand victorious.

Instead, FBI agents in the Las Vegas field office called in Johnson to help determine if anyone had violated federal law during the armed standoff. Johnson and the Las Vegas FBI settled on a controversial plan to pose as documentary filmmakers. While FBI Director James Comey had described this practice of impersonating journalists as “lawful and, in a rare case, appropriate,” the scale of the fake Bundy documentary was the largest of any publicly disclosed involving the use of a journalistic cover.

Despite spending eight months and traveling to five states to interview people who were there for the standoff at the Bundy ranch, Johnson and his undercover FBI team never uncovered anything incriminating against Bundy and his sons. In fact, the best evidence they filmed came from a former FBI informant and Arizona militiaman, Greg Burleson, who said he had hoped for violence at the standoff.

“A lot of people say, ‘Thank God it wasn’t bloody,’” Burleson told fake filmmakers. “I’m saying, ‘Damn, I’m disappointed.’” He also stated: “I was hellbent on killing federal agents that had turned their back on we the people.”

But Burleson was alone in this. The other people the FBI film crew interviewed on camera, including the Bundy patriarch and his sons, expressed relief that no one was hurt during the standoff.

Less than a year after fake documentary operation ceased, Johnson, the undercover agent, continued to pose as a journalist for FBI operations. In March 15, Johnson was arrested by police in Glendale, Colorado, on a charge that he was acting as a private investigator without a license. Appearing to be investigating a city land deal, Johnson had told local police he was doing research for a journalist he would not name. Local prosecutors dropped the indictment after receiving a letter from the FBI asking them not to prosecute.

The Shooting in Oregon

With their spirits bolstered by a perceived victory over authorities in Nevada, the Bundy sons, led by Ammon and Ryan, sought to spread their message of resistance to federal tyranny. Roughly a year and a half after the showdown in the desert, the men led the armed takeover and occupation of a wildlife refuge in Oregon. Officially, the Bundys said, they were standing in solidarity with a local ranching family that had faced unlawful persecution by the state; the justification would be called into question in the ensuing weeks, as it became increasingly clear that local support for the occupation, including from the family in question, was far from unanimous.

The Oregon standoff stretched on for weeks, with the threat of violence lingering. While a Waco-like tragedy was averted, the confrontation was not without bloodshed. On January 26, 2016, Roger “LaVoy” Finicum, a 54-year-old rancher from Arizona, was shot dead in a snowbank along a remote highway outside the refuge. Finicum had been one of the drivers in a two-vehicle convoy intercepted by Oregon State Police and the FBI as the occupiers attempted to make their way to a nearby town. Finicum led authorities on a brief chase before plowing his vehicle into a snowbank in order to avoid a roadblock; his final moments were captured on video from multiple angles, including an FBI surveillance aircraft monitoring the scene from above and cellphone footage shot from inside his vehicle.

Law enforcement said Finicum was killed because he had reached for a handgun later found in his jacket — the FBI footage shows Finicum alternating between throwing his hands in the air and reaching for areas around his torso — while Bundy supporters argued the three bullets in his back and the lack of a gun in his hand were evidence of state-sanctioned murder. Complicating matters further, the shooting produced a curious piece of evidence: a bullet-hole in the roof of the vehicle Finicum was driving.

The cellphone footage captured from inside the vehicle shows the round was fired just as Finicum stepped out to face law enforcement. Local law enforcement had accounted for the shots they had fired. Initially, the five FBI agents assigned to the highway intercept operation said none of them had opened fire that day, but suspicions mounted when law enforcement sources, police reports, and the FBI’s own footage indicated that two bullet casings had in fact been removed from the scene by FBI agents prior to the arrival of local investigators.

Local authorities found themselves at odds with their federal counterparts. The Department of Justice inspector general opened an investigation, and a year later, a member of the FBI’s elite Hostage Rescue Team was indicted for taking the shots at Finicum and then lying about it to state and federal investigators. The agent, W. Joseph Astarita, has pleaded not guilty.

The Poor Record of Prosecution

The murkiness surrounding the Finicum shooting investigation reflects a broader theme in the multi-year Bundy saga. From Nevada to Oregon, the actions of federal officials and agencies have repeatedly resulted in self-sabotage and, ironically, offered a degree a legitimacy to theories held by the Bundy family’s most eccentric supporters. In other words, these actions have not only the hurt the state’s efforts at securing prosecutions, but they have also fueled longstanding perceptions among the right-wing groups and militias that the federal government is an underhanded institution that will stop at nothing to crush the little guy and cover up its own misdeeds.

From the beginning, federal prosecutors have sought to prove a grand conspiracy undergirded the initial 2014 standoff and that the Bundys themselves were involved in setting those events in motion. Unfortunately for the government, the state’s own evidence has failed to meet that mark.

In August, jurors acquitted one of the most prominent defendants in the case, Eric Parker, of several counts for his involvement in the standoff. A photo of Parker lying prone on highway overpass, his rifle trained on the wash below, where Bundy protesters were facing off against BLM agents, became a symbol of the clash that day. Parker had traveled to Nevada with his friend, Scott Drexler, who was also acquitted, to join in the demonstrations. In his conversations with the FBI’s fake documentary team, Parker had said that his motivation for attending the protest was to take a stand against police brutality — a reference to a viral video of one of the Bundy brothers being tased by BLM agents — and that he carried a weapon in hopes of providing a check against the militarized law enforcement on hand in Bunkerville. In addition to Parker and Drexler, jurors also acquitted standoff participants Ricky Lovelien and Steven Stewart in August.

To date, the heaviest punishment resulting from the Nevada standoff was levied against Burleson, the Arizona militia member and former FBI informant. In conversations with the FBI film crew, Burleson made a series of self-incriminating boasts about his reasons for joining the standoff as he drank alcohol provided by the undercover agents. Burleson claimed that he was ready, willing, and eager to kill members of law enforcement. Whether he had the capacity for such violence is unclear; the 53-year-old is legally blind, suffers from serious health issues, and now uses a wheelchair for transportation. He was sentenced to more than 68 years in federal prison.

Most of the government’s convictions have come from guilty pleas from nine supporters in Oregon and two others in Nevada. They include Gerald DeLemus, a co-chair of a veterans’ group with the Donald Trump presidential campaign who was sentenced to seven years in prison.

The Whistleblower

Last week, The Oregonian reported on the existence of a memo written by a senior BLM official tasked with leading an assessment of the government’s handling of the Bundy standoff, which pointed to a yearslong pattern of incompetence and potentially illegal behavior on behalf of federal agents tasked with protecting public lands.

The sealed document, later posted online, was authored by Larry “Clint” Wooten and painted a picture of a lawless federal agency. During his two years and 10 months examining the Bundy case, which he described as “the largest and most expansive and important investigation ever within the Department of Interior,” Wooten said he observed “a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical, and legal violations among senior and supervisory staff at the BLM’s Office of Law Enforcement and Security.” Wooten added that the actions of BLM officials in the Bundy case “made a mockery of our position of special trust and confidence, portrayed extreme professional bias, adversely affected our agency’s mission and likely the trial regarding Cliven Bundy and his alleged co-conspirators and ignored the letter and intent of the law.”

In addition to a fostering a “carnival atmosphere,” in which the Bundy defendants, their supporters, and Mormons in general were routinely ridiculed (the Bundys are Mormon), Wooten accused Dan Love, the lead BLM agent, of doing everything in his power to push the Bundy investigation in his preferred direction. “It is my assessment and the investigation showed that the 2014 Gold Butte Trespass Cattle Impound was in part a punitive and ego driven expedition by a Senior BLM Law Enforcement Supervisor,” he said, adding that Love sought to “command the most intrusive, oppressive, large scale and militaristic trespass cattle impound possible.” Wooten specifically accused senior BLM officials in Nevada of failing to keep the U.S. attorney’s office up to date “on substantive and exculpatory case findings and unacceptable bias indications.” When he “personally informed” acting U.S. Attorney Steven Myhre and the FBI of the issues, Wooten said, his supervisor “deceptively acted ignorant and surprised.”

“When I asked Mr. Myhre if the former BLM (Special Agent in Charge’s) statements like ‘Go out there and kick Cliven Bundy in the mouth (or teeth) and take his cattle’ … would be exculpatory or if we would have to inform the defense counsel, he said something like, ‘We do now,’ or ‘It is now,’” Wooten said.

Wooten lost his job in Nevada — a result, he believes, of continually raising concerns regarding the professionalism of the Bundy investigation — and was assigned to a post in Idaho. He has since filed a whistleblower retaliation complaint, and the case is now being investigated. In closing his memo, Wooten said his complaints were not a result of sympathy for the Bundys or their supporters; he believes they broke laws during the confrontation at the wash. Instead, he argued, they stemmed from responsibilities incumbent on professional law enforcement officials.

“As a law enforcement officer, I can’t allow injustices and cover-ups to go unreported or half-truths and skewed narratives to go unopposed,” he said. “I have learned that when conduct of this sort isn’t corrected, then by default it is condoned, and it becomes unofficial policy.”

The Missing Evidence

In her mistrial decision Wednesday, Judge Gloria Navarro listed six types of evidence that the government deliberately withheld from defendants, including information confirming that a FBI SWAT team had set up a surveillance camera outside the Bundy ranch and had access to a live feed from the device, as well as maps describing government snipers monitoring the property. The Bundys’s legal team had argued that the build-up of equipment and personnel was part of the reason their co-defendant Ryan Payne put out a public call for support in the run-up to the standoff, and made formal requests for information on the technology set up around the property. Though the U.S. attorney’s office apparently knew about the existence of the surveillance equipment, it nonetheless dismissed the motion as “fantastical” and part of a “fishing expedition.”

Navarro also pointed to the existence of nearly 500 pages of internal BLM documents withheld from the defense team regarding Love, the BLM special agent in charge during the Bundy affair.

Two months before the trial of Cliven Bundy, his sons, and Payne was to begin, BLM fired Love after internal inquiries substantiated a host of misconduct, including deleting BLM emails that then-Utah Rep. Jason Chaffetz had requested; manipulating a job search so that his friend would benefit; and using his BLM position to acquire tickets to the Burning Man festival, where he was overseeing security and had demanded the construction of a $1 million compound with 24-hour access to ice cream. In addition, BLM determined that Love took valuable stones known as “Moqui marbles” — which were being held as evidence in a case — and handed them out “like candy” to colleagues and a contractor.

While so far unable to convict Cliven Bundy, U.S. prosecutors and investigators have at least proven beyond a reasonable doubt that the government really was out to get him.

Top photo: Flanked by armed supporters, rancher Cliven Bundy speaks at a protest camp near Bunkerville, Nevada on April 2014.