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STEVE SEBELIUS: Bundy’s guilty, but government errors set him free

Make no mistake: Cliven Bundy is guilty.

He’s guilty of failing to pay fees for allowing his cattle to graze for two decades on federal lands. Read that as property owned in common by the people of the United States, who improperly subsidized the profits of the Bundy cattle operation.

He’s guilty of embracing some rather outlandish ideas about the U.S. Constitution, federal, state and county governments, and how they each interact.

He’s guilty of misunderstanding the nature of federal land, which comprises more than 85 percent of Nevada’s territory. Bundy fails to read or grasp the meaning of Article 4, Section 3 of the Constitution, which grants Congress “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

He’s guilty of hypocrisy: He fought the federal government over unpaid federal fees in court for years, but after losing time and time again said he didn’t even recognize the existence of the federal government.

He’s guilty of racism in his comments about African-Americans, wondering whether they were better off and had “more freedom” during the era of slavery than under “government subsidy.”

He’s guilty of inciting what he described as a “range war” in 2014, inviting armed insurrectionists to his ranch near Bunkerville to stand off with duly authorized federal officers who were simply trying to enforce the lawful orders of the federal court.

Bundy is damn lucky his “range war” didn’t result in bloodshed, either on the part of federal law enforcement officers or those of the misguided would-be militia types who flocked to his side. It could easily have gone the other way.

After a standoff that featured an angry, armed mob facing down Bureau of Land Management officers and some of Bundy’s band of armed insurrectionists pointing their weapons at police officers, the government brought charges in federal court.

Once more, Bundy got due process from the government in which he disbelieves, another chance to defend his rights. And his lawyers did an excellent job, notwithstanding the basic fact that — even if you disagreed with the way the government went about enforcing the court’s orders — Bundy was obviously in the wrong.

In the end, however, U.S. District Court Judge Gloria Navarro dismissed the indictment against Bundy and some of his co-defendants.

It wasn’t because they were innocent. It was because the government allegedly failed to live up to its duty during the trial. Navarro said information that should have been turned over to Bundy’s defense team was not and that this “flagrant prosecutorial misconduct” met a high legal standard: “A universal sense of justice has been violated.”

And the dismissal came with prejudice, which means the government may not seek a new indictment.

The government has appealed that dismissal, charging that Navarro erred and exceeded her authority. Still, Assistant U.S. Attorney Elizabeth White told a 9th U.S. Circuit Court of Appeals panel that “we fell short.”

“But falling short doesn’t warrant the extreme sanction of dismissing a criminal indictment, in particular dismissing it with prejudice,” White said.

Bundy’s appellate lawyer, Larry Klayman, disagreed. “There was flagrant abuse here,” he told the panel. “It’s one of the worst cases of abuse in the history of prosecutions.”

Nobody ever accused Klayman of understatement.

But no matter what Bundy did wrong — and, contrary to his attorneys’ view, he did plenty wrong — it doesn’t justify stacking the prosecution and withholding potentially exculpatory evidence. If the government could not win the case on its merits while disclosing all the evidence, it doesn’t deserve to win at all. The obligation of a prosecutor is not only to bring only those cases he or she believes can be proven to a jury beyond a reasonable doubt, but also to give the defendants a fair trial. According to Navarro, the government failed in the latter.

Cliven Bundy is most certainly guilty — of a great many things. (And he still owes those unpaid grazing fees.) But when it comes to renewing his prosecution, Navarro’s decision should stand. Bundy suffers from grand delusions and twisted thinking, both of which led to his breaking the law. But federal prosecutors charged with enforcing the law cannot be allowed to evade its requirements, even when trying to bring a guilty man to justice.

Steve Sebelius is a columnist and the politics and government editor for the Las Vegas Review-Journal

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