Bundy Prosecutors Should Prove Need for any Secrecy

A federal judge has granted the Las Vegas Review-Journal, this newspaper and The Associated Press the right to intervene in the criminal case involving the armed standoff at the Bundy ranch in Bunkerville two years ago in order to challenge an effort by the prosecution to keep virtually all evidence in the case veiled in secrecy until the trial next February.

U.S. Magistrate Judge Peggy Leen wrote, “As the Second Circuit has eloquently written, ‘[t]ransparency is pivotal to public perception of the judiciary’s legitimacy and independence.’ … Federal judges are not elected. We claim legitimacy not by election, but by reason. The Constitution grants the federal judiciary ‘neither force nor will, but merely judgment.’ The Federalist No. 78 (Alexander Hamilton). The Court finds that allowing intervention will promote transparency and the integrity of the judicial proceedings in this case. The Court will therefore grant the Amended Motion to Intervene for the limited purpose of opposing the Government’s Motion for Protective Order.”

The prosecutors, who opposed the media intervention, have asked that all evidence shared with the attorneys for the 19 defendants — including rancher Cliven Bundy and four of his sons — not be made public, claiming disclosure could jeopardize the safety of witnesses and prosecutors.

The defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison. The charges grow out of the April 2014 standoff between self-styled militia and Bureau of Land Management law enforcement when the government tried to roundup Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties. The BLM eventually released the cattle and left.

Among the reasons cited by Judge Leen in allowing the media intervention is the fact the indictment “followed a two-year investigation and a decades’ long series of disputes between Defendant Cliven Bundy and the federal government over land use restrictions and federal laws and regulations. Mr. Bundy’s co-defendants are his family and supporters. Defendants claim they were peacefully protesting government overreaching, some of them while exercising their Second Amendment right to bear arms. The Government claims Bundy and his co-defendants planned and led an armed assault to threaten, intimidate, and extort law enforcement officers from carrying out lawful orders of this Court. It has generated considerable public debate about the Constitutional role of the federal government in owning large amounts of land in the western United States.”

Attorney Maggie McLetchie, who represents the media in this case, told the Las Vegas newspaper, “We are very pleased that our concerns with the protective order will be considered by the court, and agree that transparency is especially important due to the nature of the Bundy case.”

In a motion filed with the court this past week McLetchie argued, “This overbroad and unsupported protective order impedes the rights of Intervenors and other news outlets to report on a case of local and national importance. One of the most critical aspects of news reporting is to inform the public of justice being carried out in the courts.
In this regard, the press is vital to the health of a democracy. … This right is anchored in the value of keeping ‘a watchful eye on the workings of public agencies,’ and in publishing ‘information concerning the operation of government.’ … ‘In short, justice must not only be done, it must be seen to be done.’”

The right to intervene is merely the first step. Now the courts must do more than pay lip service to transparency. Though it may prove time-consuming, the prosecutors should now be required to provide specific reasons and proof — not just vague suspicions and speculation — that a particular piece of evidence, testimony or documentation should be kept from public scrutiny.

In her latest motion McLetchie quotes from a court case detailing this requirement, “‘The party opposing disclosure has the burden of proving good cause, which requires a showing that specific prejudice or harm will result if the protective order is not granted.’ … A party seeking a protective order must show ‘“that disclosure will result in a clearly defined, specific and serious injury.’” — TM