Editorial: Bundy prosecutors should prove need for any secrecy

A  federal judge has granted the Las Vegas Review-Journal, the Battle Born Media newspapers 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.” Bundy intervene order copy

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.

Cliven Bundy (R-J photo)

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.’” Bundy intervene memo

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.’”

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Bundy ranch standoff

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3 comments on “Editorial: Bundy prosecutors should prove need for any secrecy

  1. Patrick says:

    Not only is the interior vendors brief poorly written, beginning in “Phase 1” of discovery, the intervenors are asking that the government, without tax dollars “stolen at the point of a gun” work to produce substantial evidence that the intervenors acknowledge is already available to them. I’ve always wondered how a libertarian justifies money “stolen at the barrel of a gun” be used to benefit them, but now I guess I know. (With apologies of course to Ayn Rand and her Social Security benefits)

    In Phase 2, the intervenors apparently have no argument at all, merely a “they didn’t show good cause” conclusion, before moving on to their even more conclusury Phase 3 argument.

    “Good cause” is not a real high standard to meet here and the fact that the Republican Journal, and particularly Ben Botkin, used the criminal actions taken by Bundy out in Bunkerville to glorify him, (and pump up their viewership and comments of those articles) over the course of several months, propagandizing the population (which is clearly their intent now in seeking the information) ought to be but a thin Reed standing against the governments compelling interest to protect officers who were threatened by the Bundyites.

    And contrary to any assertion that the government has tried to keep the evidence to be used against the Bundy gang “secret” rest assured that this not true, because the parties HAVE or will receive the information, it’s just the RJ (and the other intervenors) won’t be able to force the government, to spend YOUR tax dollars, working to get them information which, for the most part, they admit they have access to already.

  2. Steve says:

    I’ve always been entertained by the modern liberal’s notion that anyone who proposes entitlement programs be curtailed in any way must also forego ever using any of those programs after being forced to pay into them all their lives.

    The goal is to improve the lives of people for the future since we know for certainty …we are guaranteed to lose money on current entitlement programs.

  3. Rincon says:

    Although I agree that prosecutors must be able to show (not prove) that witnesses and prosecutors would be in danger, I don’t believe the presumption should be against them, given that, according to Newsweek at least, “…right-wing militants…since 2002, have killed more people in the United States than jihadis have.”

    Would you be so quick to advocate the divulgence of this kind of information if Jihadis were the defendents?

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