Outrageous Prosecutorial Misconduct Comes Home to Roost in the Cliven Bundy Case

BY BOB BARR

There is an old Latin proverb, “Fiat justitia, ruat caelum,” which means, roughly translated, “Let justice be done, though the heavens may fall.”  On Monday, January 8, 2018, the heavens fell on the United States Department of Justice.  More specifically, on that day a United States District Court Judge, Gloria Navarro, dismissed the criminal charges that had been pending against Nevada rancher Cliven Bundy, two of his sons, and a third defendant, for nearly four years.

What made this action especially significant is not simply that the judge dismissed the charges, but that she did so with prejudice, meaning the federal government cannot later retry the defendants.

Such steps by a federal judge – dismissing charges and doing so with prejudice – are not routine, but they are unusual; not so significant, perhaps, as to warrant special attention by persons not directly involved. What happened in the Bundy case, however, is that important.

Monday’s announcement in the federal courtroom in Las Vegas should concern every American who carries with him or her an understanding of, and appreciation for, the rule of law.  The judge’s findings should frighten every American.  Why?  Because they document and confirm how easily any one of us could wind up like Cliven Bundy — the victim of overzealous, dishonest and vindictive government employees; including, most disturbing, those within the Department of Justice.

What makes the Judge’s ruling so important, are the reasons underlying the decision.  In her ruling, Judge Navarro found that the government (including the United States Attorney’s office in Nevada and the FBI, among others) not only had withheld evidence from the defendants and their lawyers – evidence that was potentially exculpatory and could establish their innocence – but that it had done so repeatedly and willfully; that is, deliberately and maliciously.

A fair question might be posed, as to “why” the government had behaved in such a despicable manner; what was at stake that drove federal lawyers and law enforcement officers to engage in what the Judge noted was “outrageous” and “unconstitutional” behavior?

Was it money?  After all, the federal Bureau of Land Management (a subsidiary of the Interior Department) was seeking over a million dollars from the Bundys; which, it claimed, was owed Uncle Sam because the ranchers’ cattle grazed on land claimed to be owned by the U.S. government.  But is there a dollar amount beyond which the Bill of Rights does not apply?

Was it an egregious violation of the Endangered Species Act as claimed by the feds; grazing that threatened the very existence of a tortoise that inhabited this particular patch of sagebrush?  But is a tortoise more important in the eyes of our Constitution, that human beings; does it, too, trump the Bill of Rights?

Was it because the government had conducted a fair and objective “threat analysis” of the Bundys and their activities leading up to the stand-off that took place (and ended peaceably) on April 12, 2014, and found credible evidence that the family and its supporters posed a clear and present threat to federal officials?  Is it now impermissible to peaceably assemble on any plot of soil claimed by the government to belong to the government?

The Judge noted that the Bundys’ fear of federal surveillance and snipers, which preceded the 2014 stand-off, were in fact justified and well-founded; even though the government deliberately hid evidence of such actions and derided such assertions as fictions and “urban myths” conjured up by over-imaginative defendants.

The government claimed repeatedly that its agents “feared” for their lives in part because a “threat analysis” concluded that the Bundys and their supporters posed a very real and imminent danger of violent opposition.  In fact, as the Judge found, the so-called “threat analyses” were based on nothing factual; and actually concluded just the opposite.

What appears to have been at the heart of the Justice Department’s unconscionable behavior was sheer hubris; the arrogance that comes from a superior sense of status and power, built on decades of legislative and judicial decisions concluding that the federal government can do whatever it wants, whenever it wants, to whoever it wants and that its actions are not to be questioned.

A thorough investigation of this sorry incident is due by the Attorney General, the Secretary of the Interior, the head of the FBI, and perhaps most important, by those in the Congress responsible for ensuring that our Constitution and laws are carried out with a far higher degree of integrity and respect than that which has been afforded the Bundy family. Moreover, unless those responsible are punished appropriately, surely other American citizens will find themselves the targets of future witch hunts.

And, incidentally, why is this case largely being downplayed, if not ignored, by most media outlets?


Self-Educated American Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.