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—now a judge seems to be listening

Rancher Cliven Bundy speaks during a news conference near his ranch on April 24, 2014 in Bunkerville, Nevada.
James Pogue

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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 unexpectedly sent the jury home. She had already called a hearing and released 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 previously undisclosed evidence.

This trial focuses on the four so-called “most culpable” leaders of the standoff between federal agents and militias and Bundy loyalists at the family’s Nevada ranch 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—marred by delays and a growing collection of seemingly key and exculpatory evidence that prosecutors have failed to turn over to defense lawyers during discovery.

This includes video footage, evidence that an FBI agent had an AR-style rifle near the family home, and FBI “threat assessments,” 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 “snipers.” The situation could “undermine the confidence in the outcome of the trial,” presiding judge Gloria Navarro said. “The court is inclined to find that this information was not timely provided.”

But another piece of potential evidence—a sealed whistleblower report apparently leaked and shared by a Washington state representative—is news of a different order, a report that seems likely to upend the government’s 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.

I’ve covered the Bundys before, and wrote a forthcoming book about their movement. I hadn’t 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 sometime Bundy supporter who has tried to be a voice of moderation called me. “After all this trying, you know, to be sane and moderate,” he said, “it’s like every bad thing they say about what the government does is true.”

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’s lead investigator on the case that led to the failed attempt to round up the family’s cattle, which had been grazing on federal land without permits for 20 years. “The longer the investigation went on,” he writes, “the 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.”

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

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’ defense. “Not 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,” he writes.

A later investigation by a supervisor pushed back on Wooten’s 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—and he’s since been fired for demanding free tickets to Burning Man, threatening that “grenades will go off” if he didn’t 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’s case since the beginning.

It’s too early to say if Wooten’s report will lead to any specific piece of exculpatory evidence that hadn’t 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’t just a product of this trial—they’ve been present since the moment Ammon and Ryan Bundy were arrested in the shootout that killed LaVoy Finicum and led to the end of the Malheur takeover. An independent investigation of that shooting by the Deschutes County Sheriff’s Office found that two shots were fired as Finicum exited his truck—on 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’t disclose them to investigators, and his shell casings disappeared. He was ultimately charged in federal court with lying in an attempt to obstruct justice—an explicit admission that at least one federal agent had engaged in a quite literal cover-up.

Moments like this—and the Wooten report, and countless other instances—and the suspicion they engender 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 face serious penalties.

Thus far, the government’s biggest victory is the conviction of a 53-year-old Phoenix man named Greg Burleson, who was one of the many loners who ended up being “mesmerized,” 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 producing a documentary for a sham company called Longbow Productions.

“I was hell-bent on killing federal agents that had turned their back on we the people,” 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. “Yes, I said a lot of crazy things. I’m ashamed of them actually,” he said during his sentencing. “Looking back at them, it’s like, ‘Wow, obviously I shouldn’t drink.’”

The other indictments have produced one sensational acquittal—of Ammon and Ryan and five others—a couple of minor convictions, and a smattering of plea deals, resulting in sentences far shorter than Burleson’s, 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—and federally mandated minimum sentences—mean 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’s report will bolster the Bundys’ 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’d shown up to protest what they said were longstanding abuses by the BLM. “Were we threatening to anyone?” Ammon Bundy asked me incredulously, if a bit disingenuously, before his trial. “We were there as peaceful—basically—protestors.” 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. “Apparently it’s legal in America for heavily armed white terrorists to invade Oregon,” Montel Williams tweeted. “Imagine if some black folk did this.”

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. “Do these folks even know what it took to arrive at a verdict on any one of these counts?” one juror later asked The Washington Post. “How could 12 diverse people find such agreement unless there was a colossal failure on the part of the prosecution? Don’t they know that ‘not guilty’ does not mean ‘innocent’?”

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.