Fortunately for the Bundys, constitution is alive and well

By John L. Smith

The Nevada Indendent

To hear Cliven Bundy and his sons tell it, the U.S. Constitution is as sacrosanct as a biblical text printed on papyrus and as fossilized as the bones of the Founding Fathers.

“I believe the Constitution is not so subject to interpretation,” Ryan Bundy said after last month’s mistrial in the family’s federal criminal conspiracy case. “Read it. Understand it.”

Fortunately for the Bundys and the other defendants, presiding U.S. District Judge Gloria Navarro realizes the actual Constitution has been very much interpreted. It was the United States Supreme Court’s interpretation of the Fifth and Fourteenth Amendments in the Brady v. Maryland decision in 1963 that helped shape the federal rules of evidence in order to ensure due process and a fair trial.

In Brady, the high court determined “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”

Ensuing Supreme Court decisions addressing fairness and due process have echoed through every courthouse in the land, holding that prosecutors have a “constitutionally mandated, affirmative duty to disclose exculpatory evidence to the defendant to help ensure the defendant’s right to a fair trial under the Fifth and Fourteenth Amendments,” as law scholars with the Federal Judicial Center wrote their 2004 report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States.

When prosecutors turned over more than 1,000 pages of discovery material to the defense more than one month into the trial, and some of that evidence was found to place the defense theory that the Bundy family felt threatened by “snipers” positioned on the hillside outside their ranch in direct opposition to the language contained in the indictment, Navarro had no reasonable choice but to dismiss the case with prejudice. In the process, she called out the experienced prosecution team for willfully violating their constitutionally mandated obligations under Brady. It was as stinging a rebuke as anyone’s likely to see in federal court.

And it happened because the Constitution is far more than a piece of parchment from America’s powdered wig era.

You’ll notice that she didn’t rule on the defendants’ innocence or guilt — not by a long shot. It was due process that had been violated. Given the evidence we now know exists, the prosecution may have understood the language of the indictment was flawed the day it was written. The FBI, Navarro ruled, was equally culpable in fouling due process by not providing agent memos and logs that made it clear armed federal officers positioned a surveillance camera near the Bundy Ranch in the days leading up to an armed 2014 standoff precipitated by a court-ordered cattle impoundment after a 20-year grazing rights dispute.

Although the government has the right to appeal Navarro’s decision, that would be one more bad idea. The cows are out of this corral, so to speak. Sadly for those who believe citizens shouldn’t be able to point loaded rifles at federal employees, the botched prosecution has had precisely the opposite of its intended effect: It only figures to embolden the sovereign citizen crowd and self-appointed militia men. Justice has been undermined.

In an America awash in firearms, where an AR-15 passes as a hunting rifle, you don’t need a reason to start a revolution. The next time a rancher decides his reading of the Constitution differs with the mainstream and decides to call for armed backup after he’s exhausted his legal remedies, the fates might not be so kind. As Clark County Sheriff Joseph Lombardo testified in a previous trial, one car backfire, one accidental firearm discharge, could have resulted in a bloodbath.

The trial is over, but the fallout from the Bundy case promises to reverberate for years. Beyond the right-wing political symbolism that’s sure to be exploited under a patriotic banner, there’s the arrogant and irresponsible role of the BLM to consider. The highly questionable actions of former BLM Special Agent in Charge Dan Love are a stain on the agency.

Perhaps we’ll even learn more about other influences on the case in the months ahead.


After spending nearly two years in a detention center jumpsuit, on Monday Cliven Bundy quickly changed into western attire with a cowboy hat and tweed coat. With his wife Carol on one side and defense attorney Bret Whipple on the other, he paused inside the federal courthouse and said, “Since when is the federal government supposed to have an army to come and get we the people? When did that ever happen in America? It happened on Bundy Ranch. They stuck the guns down our throats and that’s definitely not what our Founding Fathers meant to happen in America. The whole world is looking at us. … Why is the federal government acting like this? Why are we allowing the federal government to have arms? That’s the big question the world wants to know. We’re not done with this.”

In case you wondered whether being locked nearly 23 months behind bars has changed Bundy’s view of the Constitution and federal jurisdiction, he offered, “If the federal government ever comes after us again, we will definitely tell them the truth. That’s all we’ve ever tried to do is tell them the truth.”

That is, the truth as he interprets it.

Before exiting the courthouse into a chilly January sprinkle, the recalcitrant rancher added, “I graze my cattle only on Clark County, Nevada.”

The column first ran on the Nevada Independent website. Disclosure: Joseph Lombardo ($500) has donated to The Nevada Independent. You can view a full list of donors here.John L. Smith is a longtime Las Vegas journalist and author. Contact him at On Twitter: @jlnevadasmith.

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