Federal prosecutors next week will kick off their bid to convict the leaders of the armed occupation of the Malheur National Wildlife Refuge in southeastern Oregon earlier this year.
Opening statements in what promises to be a lengthy and unusual trial are slated for Tuesday for seven defendants, including the group’s leaders, Ammon and Ryan Bundy.
The government has charged the Bundys and others of conspiring to prevent government employees from doing their jobs at the refuge through the use of force, intimidation or threats during the 41-day occupation.
Additionally, several of the defendants, including the Bundys, face charges of possessing a firearm at a federal facility.
The stakes are high at the potentially three-month trial. If the Bundys and other defendants are acquitted, it could embolden their followers and lead to more protests and occupations across the country. The government wants to quash their movement by sending a message with multiple convictions.
Jury selection began this week in Portland. The case is already off to a rocky start with the defense raising arguments that echo those made by the Bundys during the occupation protesting federal control of public lands.
They contend that the federal district court has no jurisdiction over the actions at the refuge because during their occupation it ceased to be federal property through a legal principle called "adverse possession." Prosecutors contend such a claim cannot legally be brought against the government on federal lands.
Ammon Bundy’s attorney, Marcus Mumford, has also employed colorful language to make his client’s case. In court documents, he quoted an exchange in the 1948 film "The Treasures of the Sierra Madre" in which a bandit, posing as a police officer, accosts Humphrey Bogart’s character, Fred Dobbs. Dobbs asks to see badges, and the bandit responds: "Badges? We ain’t got no badges. We don’t need no badges. I don’t have to show you any stinking badges!"
The government’s argument, Mumford added, "says, essentially, we don’t need to prove no stinking subject matter jurisdiction! But that’s the thing: They do."
Further, Ryan Bundy is one of three defendants representing himself. He has refused the advice of a court-appointed attorney, tried to get her removed from his defense, attempted to subpoena Oregon’s governor and submitted court documents written in near gibberish.
"i; ryan c, man, am not prosecutable in the Legal Society, a.k.a., the BAR association," Bundy wrote in July. "i; ryan c, man, am not a creation of the Legal Society, a.k.a., the BAR association; nor; do i serve at the please of the Legal Society, a.k.a., the Bar Association."
There have also been disputes over what the defendants are allowed to wear in court. Bundy and others want to wear their usual boots, which are against U.S. Marshals Service protocols because they pose a safety risk. Another defendant, Kenneth Medenbach, who is also representing himself, appeared during jury selection with a shirt imprinted with a message that appeared to instruct jurors to ignore a judge’s instructions.
Those circumstances have led critics of the occupation to speculate that the trial will turn into a "three-ring circus."
"We certainly anticipate the jury will see through any attempts to say this was a protected First Amendment protest," said Aaron Weiss of the Center for Western Priorities.
There is, however, a more serious undercurrent to the proceedings. This week, Judge Anna Brown said that U.S. Marshals have stepped up security at the courthouse.
"The reality of the situation is this judicial officer has been threatened," Brown said, according to media reports. "Our lives have been threatened."
Several of the Malheur occupants were involved in an earlier federal clash in April 2014, when the Bundys’ father, Cliven, led an armed standoff against the government in Nevada over grazing fees on public lands.
Federal officials largely capitulated, energizing the Bundys and their supporters. (Cliven is now in federal custody in Las Vegas. He, Ammon and Ryan Bundy are awaiting trial for that event.)
Fast-forward to late 2015, when the Bundys began protesting on behalf of Dwight and Steve Hammond, who were convicted of arson on federal lands in 2012 and faced five-year prison terms. Last October, Ammon Bundy told the local sheriff in Oregon that if the Hammonds went to prison, there would be "extreme civil unrest."
On Jan. 2, the Bundys and others seized the 187,000-acre Malheur National Wildlife Refuge.
The Hammonds quickly distanced themselves from the Bundys — reporting to prison just two days after the standoff began — but the Bundys remained at the refuge, encouraging others to join them on social media.
Ammon Bundy appeared in videos saying the occupiers were "planning on staying here for several years" and "calling people to come out here and stand."
"We need you to bring your arms, and we need you to come to the Malheur National Wildlife Refuge," Bundy said, according to the criminal complaint.
Most of the key players in the standoff were arrested Jan. 26 during a traffic stop. It was then that the police shot and killed Robert "LaVoy" Finicum, after he crashed his truck into a snowbank and police said he reached for his gun (Greenwire, March 8).
The standoff nearly ended then, but four occupiers remained, including David Fry, the last holdout and a defendant in the current case. He surrendered Feb. 11.
In total, the government charged 26 people with conspiracy. Eleven have pleaded guilty, including some considered close to the Bundys. Seven successfully delayed their trial. The prosecution dropped charges against one, online radio host Peter Santilli, this week.
That leaves the seven who will stand trial now: the Bundy brothers, Fry, Medenbach, Jeff Banta, Shawna Cox and Neil Wampler.
Not a slam dunk
Lawyers said the trial could be unusual in many ways.
A key factor will be the defendants representing themselves, including Ryan Bundy. That adds a significant amount of uncertainty to how a trial plays out, said Kevin Sali, a Portland-based criminal defense attorney.
Further, it is unclear whether the defendants will use the trial as an attempt to prove their innocence or as a bully pulpit for their protests against federal land management.
Brown has already indicated that she will keep the defendants who are acting as their own lawyers on a short leash in front of the jury. She has also indicated that federal land management policies are not on trial and therefore should not be discussed in front of the jury at length.
Sali, who has argued in front of Brown previously, said the judge "runs a very tight ship."
"I am optimistic that there won’t be too much drama, at least inside the courtroom," he said. "Once the lights are on and the trial starts, there are very strict rules about how you can and can’t proceed."
However, Sali noted that there are significant differences between this case and the typical criminal proceeding.
In most trials, there is a dispute over what actually happened. That doesn’t exist here, due to the reams of photographs, media coverage and social media video.
There is also typically a question of the legality of the actions at issue in a case. But, again, here it seems clear that the defendants seized control of federal land with guns.
And lastly, in most trials, the defendant wants to either prove his or her innocence or minimize sentencing. Here, the Bundys and others appear willing to take their stand against federal land management all the way through the trial.
That doesn’t mean, however, that the case is a slam dunk for federal prosecutors.
Multiple former federal prosecutors who have worked in the West — and who would only comment anonymously because they didn’t want to be seen second-guessing the prosecution’s legal strategy — said obtaining a guilty verdict in these types of cases has been historically difficult because jurors often share the Western, independent, anti-federal-government views of the defendants.
Mumford, Ammon Bundy’s attorney, has repeatedly hit on that theme in court documents. He has argued that during the occupation, the federal government ceded "title," or ownership, of the land during the occupation because for most of it authorities did not seek to take it back.
Therefore, he contended that the alleged crimes did not occur on federal property and so the federal court lacks jurisdiction over the case.
"[T]he Defendants’ possessory ‘title’ continued throughout the entire of the occupation so that, based on the government’s own allegation’s the alleged crimes were not committed on federal land or against federal [sic]," he wrote.
Legal experts, however, called that argument "pretty bizarre."
"The authority of the federal governed over federal lands is firmly established by more than a century of Supreme Court precedent," said Robert Keiter, a law professor at the University of Utah who has written on the issue.
The defense is also expected to argue that the occupation was a protest protected by the First Amendment and that the Second Amendment allowed them to bring their guns to the refuge.